JUSTICES STARCHER AND ALBRIGHT concur in part and dissent in part and reserve the
right to file separate opinions.

SYLLABUS

1. The purpose of judicial disciplinary proceedings is the preservation and
enhancement of public confidence in the honor, integrity, dignity, and efficiency of the
members of the judiciary and the system of justice. Syl., Matter of Gorby, 176 W.Va. 16,
339 S.E.2d 702 (1985).

Per Curiam:

This case is before this Court upon the April 21, 2006, Request for Hearing of
Magistrate Clarence W. Charlie McCourt, Jr., Magistrate for Upshur County. By our order
of April 12, 2006, Magistrate McCourt was suspended without pay from his position as
Magistrate by this Court pursuant to Rule 2.14(d)(2) of the West Virginia Rules of Judicial
Disciplinary Procedure following a finding of probable cause that Magistrate McCourt had
engaged in a serious violation of the Code of Judicial Conduct. This Court has before it the
Request for Hearing, the briefs of the parties and all matters of record. Following the
arguments of the parties and a review of the record herein, this Court finds that the Rules of
Judicial Conduct and existing case law support Magistrate McCourt's suspension without
pay. Accordingly, this Court affirms the suspension without pay.

I.
FACTS

On March 25, 2006, Barbara Baire came before Magistrate McCourt to request
a domestic violence protection order (hereinafter, DVP order) after she was allegedly
beaten by her husband, Jackie Baire. (See footnote 1) Magistrate McCourt issued the DVP order as well as
an arrest warrant for Mr. Baire. A representative of Women's Aid in Crisis took Mrs. Baire
into a restroom at the magistrate court building and photographed Mrs. Baire's bruises. Mrs.
Baire then left the magistrate court, but she did not return home because she was in fear for
her life. Instead, she went to the Colonial Motel, which is located about 200 yards from the
magistrate court building.

In the meantime, deputies from the Sheriff's office went to the Baire house to
serve the DVP order and the arrest warrant on Mr. Baire. Magistrate McCourt contacted the
9-1-1 communication center several times to keep abreast of the situation, inquiring as to
whether the deputies had entered the home and, at times, speaking directly to the deputies
and offering them advice on how to proceed. Mr. Baire was finally taken into custody
around 3:00 am on March 26, 2006. The recordings from the 9-1-1 communications center
reflect that Magistrate McCourt was made aware of the arrest by one of the deputies, who
also informed Magistrate McCourt that he had already contacted Mrs. Baire to let her know
that her husband had been arrested and was in jail.

Nonetheless, at around 6:00 am on March 26, 2006, Magistrate McCourt called
Mrs. Baire at the motel to tell her of her husband's arrest. Mrs. Baire allegedly had some
questions about the legal process, which Magistrate McCourt attempted to answer. However,
Magistrate McCourt asserts that he did not believe that Mrs. Baire really understood the
process, so he asked if he could come by her motel room to talk to her about it some more.
Mrs. Baire agreed, and Magistrate McCourt walked over to the motel.

Magistrate McCourt maintains that he was only briefly at the motel (ten
minutes by his account) and that he stood in the doorway the entire time he was at the motel.
He asserts that he did not enter the motel room or otherwise act inappropriately. Mrs. Baire,
however, asserts that Magistrate McCourt came into the room and began to ask her questions
about the case. She alleges that Magistrate McCourt asked specifically to see her bruises,
which were covered by her clothing. Mrs. Baire allegedly asked if it would help her case,
and Magistrate McCourt allegedly responded that it would. Mrs. Baire asserts that she tried
to pull her pants leg up to show him the bruises on her legs, but was unable to do so. She
then allegedly lowered her pants to her knees to show Magistrate McCourt the bruises.
Magistrate McCourt allegedly told Mrs. Baire to turn around so he could check the backs of
her legs. Magistrate McCourt also allegedly asked Mrs. Baire whether she had any bruising
on her inner thighs and bent down to take a closer look.

Magistrate McCourt next allegedly asked whether Mrs. Baire had any bruising
on her chest, and she answered affirmatively. He allegedly asked to see those bruises as well,
and Mrs. Baire lifted her shirt. Magistrate McCourt then allegedly touched a bruise on the
top of Mrs. Baire's breast as well as an area below her nipple. Mrs. Baire asserts that
Respondent then went into the bathroom for several minutes before coming back out and
sitting next to her on the bed. She states that she was very uncomfortable, and Magistrate
McCourt left soon thereafter. On his way out, though, he allegedly asked to see the bruise
on Mrs. Baire's breast again. She declined to show him the bruise again. Magistrate
McCourt then allegedly instructed Mrs. Baire not to tell anyone that he had come to the
room.

The following day, Mrs. Baire told a Women's Aid in Crisis worker what had
occurred in the motel room. She subsequently filed a complaint against Magistrate McCourt
with the Judicial Investigation Commission on April 10, 2006. (See footnote 2)

On April 10, 2006, the Administrative Director of the Courts filed a complaint
against Magistrate McCourt alleging that the magistrate had engaged in a serious violation
of Canon 2A of the Code of Judicial Conduct. (See footnote 3) On April 12, 2006, this Court entered an
Order finding probable cause that Magistrate McCourt had engaged in a serious violation of
the Code of Judicial Conduct and suspended him from his duties as a magistrate without pay.
Formal charges were filed on April 18, 2006, following which Magistrate McCourt filed a
written request for a hearing on the issue of his temporary suspension without pay. (See footnote 4) It is that
request that brings us here today.

II.
DISCUSSION

We have long ascribed to the belief that [t]he purpose of judicial disciplinary
proceedings is the preservation and enhancement of public confidence in the honor, integrity,
dignity, and efficiency of the members of the judiciary and the system of justice. Syl., Matter of Gorby, 176 W.Va. 16, 339 S.E.2d 702 (1985). We recently reiterated our
commitment to that principle in In re Toler, 216 W.Va. 743, 747, 613 S.E.2d 604, 608
(2005), wherein we stated, This Court will not retreat from its duty to the justice system.

In Toler, a magistrate had been suspended without pay following his indictment
on criminal charges. Though he was subsequently acquitted of those charges, this Court
declined to lift his suspension without pay pending the completion of an investigation by the
Judicial Investigation Commission.

There can be no doubt that this Court has the power to suspend a magistrate
without pay based upon an allegation that he or she has acted in violation of the Code of
Judicial Conduct. Rule 2.14(d)(2) of the Rules of Judicial Disciplinary Procedure states that:

If the Court finds probable cause pursuant to Rule 2.14(c) (See footnote 5) to
believe that a judge has engaged or is currently engaging in a
serious violation of the Code of Judicial Conduct or has become
unable or unwilling to perform official duties, the Court may
direct that the judge not hear any further civil or criminal
matters or perform other judicial functions while the matter is
pending, with or without pay.

With Rule 2.14(d)(2) in mind, we have recognized that [w]hen the integrity of the judiciary
is placed into question by the action or conduct of any judge, this Court is authorized to
impose an interim suspension pending the disposition of the charges against the judge or
until the underlying judicial disciplinary proceeding is completed. Matter of Grubb, 187
W.Va. 228, 231, 417 S.E.2d 919, 922 (1992) (emphasis added).

Magistrate McCourt contends that the Disciplinary Counsel failed to conduct
a complete investigation into the allegations against him and that he was not afforded an
opportunity to defend himself prior to his suspension. Though he recognizes that a public
office is not a property interest, (See footnote 6) Magistrate McCourt argues that his constitutionally
protected rights have been ignored inasmuch as he enjoys a pecuniary interest in his publicly-
elected position. Magistrate McCourt also points out that, unlike the respondents in Grubb and Toler, he has not yet been charged criminally; and he argues that, accordingly, it is his
very suspension without pay that casts doubt upon the honor, integrity, dignity, and
efficiency of the judiciary. We disagree.

Magistrate McCourt's uncontested actions in this matter raise profound
question which directly implicate the issue of public confidence in the judicial process. (See footnote 7) Indeed, as he admits, Magistrate McCourt is also now currently under criminal investigation
by the West Virginia State Police and may well face criminal charges for his alleged actions.
Both investigations (both disciplinary and criminal) into his alleged behavior and the
underlying uncontested matters present herein directly implicate the honor, integrity,
dignity, and efficiency of the members of the judiciary and the system of justice.

We are satisfied that sufficient evidence currently exists in this matter to
believe that Magistrate McCourt has engaged in a serious violation of the Code of Judicial
Conduct and that the suspension of Magistrate McCourt without pay is justified. We decline
to proceed further into a consideration of the merits of the underlying ethics complaint in
view of the pending investigation below. As we pointed out in Toler, [w]hen the record in
an action or suit is such that an appellate court can not in justice determine the judgment that
should be finally rendered, the case should be remanded to the trial court for further
development. Syl. Pt. 2, South Side Lumber Co. v. Stone Construction Co., 151 W.Va. 439,
152 S.E.2d 721 (1967). Here, the Judicial Hearing Board has not even heard the allegations
brought before it. In this case, that trial court is the Judicial Hearing Board, and the further
development of the record must come from a full hearing before that board. Toler, 216
W. Va. at 747, 613 S.E.2d at 608. We encourage the parties to proceed below without
unnecessary delay.

Consistent with our duty to the integrity of this State's judicial system, we
reaffirm our decision that Magistrate McCourt be suspended without pay until the underlying
judicial disciplinary proceeding is completed. Should Magistrate McCourt be exonerated by
the pending disciplinary investigation, he may return to this Court to seek backpay. See, Matter of Grubb, 187 W.Va. 228, 234, 417 S.E.2d 919, 925 (1992). As in Grubb, here we
find that the overriding public interest in preserving the integrity of the judiciary demands
that we subordinate the personal interests of [Magistrate McCourt].... Id.

The West Virginia State Police are currently investigating the matter. No charges
have yet been filed.
Footnote: 3

Canon 2A of the Code of Judicial Conduct states:

A judge shall respect and comply with the law, shall avoid
impropriety and the appearance of impropriety in all of the
judge's activities, and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of
the judiciary.
Footnote: 4

On May 5, 2006, Magistrate McCourt moved the Judicial Hearing Board to continue
its own hearing in this matter pending a criminal investigation and the possible filing of
further complaints against Magistrate McCourt. The Judicial Hearing Board granted the
motion on May 12, 2006, and set the matter for hearing on September 25, 2006.
Footnote: 5

Rule 2.14(c) of Rules of Judicial Disciplinary Procedure states that:

Upon receipt of the report, from the Chief Justice, the Supreme
Court shall determine whether probable cause exists. A finding
of probable cause hereunder shall be in lieu of a probable cause
finding made pursuant to Rule 2.7(c). If it is determined that
probable cause exists, the Court may:

(1) direct the Disciplinary Counsel to file formal charges with
the Clerk of the Supreme Court; and,

(2) provide notice to the judge of a right to a hearing on the
issue of temporary suspension, said hearing to be in not less than
30 days; with the judge provided notice of the hearing in not less
than 20 days before the proceeding; or

(3) in the alternative, remand the complaint for proceedings
pursuant to Rules 2.7(d) and Rule 4.
Footnote: 6

We recognize that many of the matters raised in this case are, at this time, only
allegations. Other matters, such as Magistrate McCourt's involvement in the activities of the
Sheriff's investigation of Mrs. Baire's domestic violence charge and his trip to the motel
where Mrs. Baire was staying appear to be uncontested. The merits of the underlying ethical
charges are not currently before this court.